Firing Mueller Could Precipitate A Crisis At DOJ

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Kevin Daley Supreme Court correspondent
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The prospect of Attorney General Jeff Sessions’ dismissal seems especially high, as President Trump disparages his longtime loyalist in daily tweets and refuses to say whether he has confidence in his leadership.

The most dangerous scenario attending this unprecedented situation, however, would be if Trump fired Sessions as part of a broader push to oust special counsel Robert Mueller, who is leading the investigation into Russian interference in the 2016 presidential election. Such a scheme could precipitate a wave of departures at the highest levels of the Justice Department, where Trump’s repeated knocks have leveled morale.

If Trump dismisses Sessions, Deputy Attorney General Rod Rosenstein will likely become acting AG, though BuzzFeed News’ Chris Geidner notes, Trump could install any Senate confirmed official in the post on a temporary basis.

Rosenstein is a career Justice Department official who commands the support of the bureaucracy and lawmakers of both parties. He is also the officer who appointed Mueller as special counsel. The prospect that he would dismiss him, therefore, seems exceedingly low. As such, it seems most likely that he would resign if ordered to fire Mueller.

Associate Attorney General Rachel Brand, the third-ranking official at the Department, would become acting AG should Sessions and Rosenstein leave. Brand has polished center-right credentials — she coordinated judicial confirmations in the George W. Bush administration and was chief counsel for regulatory litigation for the U.S. Chamber of Commerce. She also taught at George Mason University Antonin Scalia Law School, a haven of conservative jurisprudence.

But Brand is by no means a partisan. President Barack Obama tapped her for a seat on the Privacy and Civil Liberties Oversight Board and she clerked on the Supreme Court for Justice Anthony Kennedy, a Republican appointee who regularly bucks the Court’s conservative bloc. Whether Brand would fire Mueller at Trump’s request is an open question.

Suppose that Brand refuses. Her resignation would leave the top ranks of the Justice Department empty. Who then could authorize FISA warrants to surveil suspected terrorists? Who then could coordinate complex prosecutions across multiple divisions? Who then could sanction settlements requiring the approval of senior officers? Who then would supervise and organize federal law enforcement agencies?

The installation of an acting AG would do little to contain these problems. One official cannot fill the gap left by the sudden departure of Sessions, Rosenstein, and Brand. Chaos would reign for days, if not weeks, further submerging the administration in disarray and unpredictability.

If Trump fires Sessions and doesn’t broach the Mueller issue with his new AG (and this seems unlikely) perhaps a crisis could be avoided. But if firing Sessions is part of a play to get rid of Mueller, the price for his administration, the Justice Department, and the country, will be high.

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